Copyright Office Recommends Against Law Update to Explicitly Mention 'Making Available' Right

It's “currently unnecessary” for Congress to amend existing U.S. copyright law “for purposes of implementing” the 1996 World Intellectual Property Organization Internet treaties' mandate for treaty signatories to explicitly recognize copyright owners' exclusive right for “making available” on-demand transmission of their works, the Copyright Office said in a report released late Tuesday. Congress implemented the 1996 WIPO treaties -- the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty -- through its 1998 adoption of the Digital Millennium Copyright Act, but didn't include explicit references to the "making available" right. The CO had conducted a study of the issue in response to a 2013 request by then-House IP Subcommittee ranking member Mel Watt, D-N.C., now Federal Housing Finance Agency director. Existing exclusive rights protections included in Copyright Act Section 106 “collectively give copyright owners the exclusive right to offer access to their works online, including through individualized on-demand transmissions,” the CO said in its report. “To the extent that the statute is ambiguous with respect to particular aspects of that right,” U.S. treaty implementation legislation and other authorities “instruct that it should be interpreted in accordance” with the U.S.' “international obligations in this area.” Congress “may wish to consider various legislative clarifications” if U.S. courts “adopt a narrower construction in the future, such that certain international legal questions might arise,” the CO said. Any such legislative change “would need to be carefully drawn so as not to produce unintended consequences or upset settled expectations, and may require consideration of corresponding changes to maintain the copyright law's existing balance.” The CO's recommendation was in line with stakeholder feedback the office received in 2014 as part of its notice of inquiry on its study of the making available right. Copyright stakeholders had urged against amending Section 106, citing actions by both the executive branch and Congress extending Section 106's protections to include digital transmissions (see report in the April 8, 2014, issue).